On December 20, 2021, the Mediation Bill, 2021 was introduced in the Rajya Sabha, and the Parliamentary Standing Committee was tasked with reviewing the Bill. The Rajya Sabha received the committee's report on July 13, 2022. In its report, the Committee makes significant recommendations for amending the Mediation Bill in order to institutionalise mediation and create the Mediation Council of India.
Why is mediation a must for India?
Although mediation is not specifically governed by law in India, it is covered by a number of other statutes, including the Code of Civil Process (1908), the Arbitration and Conciliation Act (1996), the Companies Act (2013), the Commercial Courts Act (2015), and the Consumer Protection Act (2019). The Supreme Court of India's Project Committee on Mediation and Conciliation describes mediation as a tried-and-true alternative to traditional conflict resolution methods. It is appropriate to adopt legislation governing both domestic and international mediation because India is a member to the Singapore Convention on Mediation (officially known as the United Nations Convention on International Settlement Agreements Resulting from Mediation).
The recommendations of the panel
The panel advised against mandating pre-litigation mediation and cautioned the Centre against the clause giving higher courts the authority to set mediation guidelines.
The group has advised that the requirement of pre-litigation mediation be reviewed and should only be made available as an option to parties who are open to mediating disputes.
Pre-litigation mediation should be implemented gradually rather than all civil and commercial issues should be subject to it at once.
Panel disagreed with Clause 26 of the Bill because it violates the Constitution's spirit. The existing provisions of clause 26 should be replaced with specific provisions regarding court-annexed mediation.
It states that court-annexed mediation, including pre-litigation mediation, must be performed in accordance with the custom, guidelines, or regulations, regardless of what name the Supreme Court or the High Court gives them.
A selection committee established by the Central Government should appoint the Chairperson and Members of the Mediation Council of India.
It is necessary to redefine what "mediation" means currently. Rewrite the definition of "mediation" to reflect the goals of the clauses in Clauses 17 and 18 of the Bill.
Reasons for such recommendations
These recommendations are made for the following reasons: Making pre-litigation mediation necessary may actually cause cases to be delayed.
It might end up being another tool in the hands of truant litigants to postpone the conclusion of disputes.
It is recommended that mediation councils be established in the United States as well, taking into account the extensive range of obligations and responsibilities placed on the Mediation Council of India.
There is no need to define "mediation" individually in Article 4 because the definitions are provided in Clause 3 of the Bill.
Objective of the bill
The purpose of the legislation is to advance, encourage, and facilitate the use of institutional mediation for the settlement of conflicts, both commercial and otherwise.
to uphold accords reached through domestic and international mediation.
to establish a body for mediator registration and to promote community mediation.
To make internet mediation a respectable and affordable method, as well as for matters related to or incidental thereto, a plan has been made.
Features of the meditation bill
The purpose of the bill is to encourage, facilitate, and advance institutional mediation as a means of resolving disputes, both business-related and not.
The Bill also suggests requiring mediation before court proceedings. It also protects the rights of litigants to seek immediate relief from competent adjudicatory forums or courts. In some circumstances, immunity is granted to prevent revelation of the mediation process's contents. A Mediation Settlement Agreement (MSA), the result of the mediation process, will be enforceable in court and can be registered with the State/district/taluk legal authority within 90 days to ensure genuine records of the settlement. The Mediation Council of India is established under the Bill, which also includes provisions for communal mediation.
Drawback of the bill
Whether or whether there is a mediation agreement between the parties, the Bill mandates pre-litigation mediation for both parties prior to initiating any lawsuit or court process. Without a valid excuse, parties that skip pre-litigation mediation may be charged. But according to Article 21 of the Constitution, having access to justice is a fundamental right that cannot be curtailed or constrained. Making mediation anything other than voluntary would be a denial of justice. In addition, pre-litigation mediation will be performed in accordance with the guidelines or norms established by the Supreme Court or High Courts, as stated in Section 26 of the Bill. The Committee, however, took issue with this. It claimed that Clause 26 violated the Constitution's spirit. The healthy custom of giving equal weight to apex court judgements and decisions in the absence of statutes exists in nations with a common law system. Yet as soon as a law is passed, it takes precedence over any orders or rulings rendered by the courts. Clause 26 is therefore unconstitutional.
Additionally, when done in India and the settlement is acknowledged as a judgement or order of a court, the Bill views foreign mediation as domestic. Settlements that have previously been granted the status of judgements or decrees are not subject to the Singapore Convention.
How the Mediation Bill 2021's provisions will serve to improve the state of law and order
The legislation aims to support mediation (including online mediation) and offer provisions for the enforcement of settlement agreements reached through mediation.
Before going to court or a tribunal, a party in a civil or business dispute must attempt to settle the matter through mediation.
Increasing the state of law and order: The Bill has a few measures that could encourage the compounding of criminal offences or serve to improve local law and order conditions.
Secondly, Section 7 of the Bill states that courts shall have the authority to send any disagreement involving matrimonial or compoundable offences that is connected to or results from civil procedures between the parties to mediation.
Second, Section 44 of the Bill provides for 'any issue likely to damage peace, harmony and quiet amongst the people or families of any area or neighbourhood, to be addressed by community mediation.
Finally, the Act's requirements do not supersede other laws, such as the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act of 2013 and the Maintenance Act of 2007.
Encourage friendliness through promoting the application of Section 320 of the Code of Criminal Procedure (CrPC), which allows for the compounding of some criminal offences with the resultant acquittal of the accused.
In this case, the goal of the law is to encourage amity between the parties in order to restore peace.
Reducing the burden on the police: The failure to reach a timely and amicable resolution in many commercial or legal issues leads to criminal offences.
The police occasionally treat small cases casually or downplay the severity of crime by redesignating a cognisable offence as a non-cognizable one.
Hence, the proposed law of mediation, which has the capability to facilitate the compounding of some criminal offences as well as prevent the collapse of law and order by community intervention, may ultimately relieve some of the load on the police.
Although the primary goal of the proposed law is to use mediation to settle civil and business disputes, it offers plenty of room to reduce the burden on law enforcement organisations
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